Filed 9/4/26 P. v. Magallenez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E086215
v. (Super.Ct.No. FSB901134)
ANDREW MAGALLENEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Reversed.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Arlene A. Sevidal, Assistant Attorney General, Eric A. Swenson and Tyler L.
Krentz, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Andrew Magallenez appeals from the trial court’s
resentencing orders made pursuant to Penal Code section 1172.75.1 In relevant part,
defendant contends that the trial court erred in its resentencing orders because the
Supreme Court published new case law during the pendency of his appeal that
substantively affects his number of strike priors for the purposes of the “Three Strikes”
law. Defendant also contends that the trial court erred in reimposing his restitution fine.
We agree and reverse.
FACTUAL AND PROCEDURAL HISTORY
In 2009, defendant’s friend and fellow gang member started a fight at a crowded
bar.2 Defendant fired nine shots into the crowd, which seriously injured a security guard
and killed a customer. At the time of the shooting, defendant was a member of the Black
Angels criminal street gang, although he claimed at trial to be a former member.
A jury found defendant guilty of first degree murder (count 1) (§ 187, subd. (a))
and found true a gang enhancement (§ 186.22, subd. (b)(1)) and a firearm enhancement
(§ 12022.53, subd. (d)); attempted murder (count 2) (§§ 187, subd. (a); 664, subd. (a))
and found true a gang enhancement and a firearm enhancement; and unlawful possession
of a firearm by a felon (count 3) (former § 12021 [now § 29800], subd. (a)(1)). Three
“strike” priors (§ 667, subds. (b)-(i), 1170.12), two prior serious felony conviction
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 We have derived portions of our factual and procedural history from defendant’s
direct appeal, People v. Magallenez (April 16, 2012, E052841) [nonpub. opn.]
(Magallenez-1).
2
enhancements (§ 667, subd. (a)), and two prior prison terms enhancements (§ 667.5,
subd. (b)) were also found true.
Defendant’s sentence was tripled to 75 years to life based on his three prior
strikes. On each of count 2 and count 3, defendant was sentenced to 25 years to life
(together an additional 50 years to life), to run consecutive to count 1. Defendant was
also sentenced to 25 years to life, consecutive, for each of the two firearm enhancements
on count 1 and count 2 (together another 50 years to life). The court suspended
imposition of its sentence with respect to the gang enhancements on count 1 and count 2.
In total, defendant was sentenced to an indeterminate term of 175 years to life. The
sentence was imposed on January 14, 2011. In Magallenez-1, this court reversed on the
sole issue of whether the term on count 3 should be concurrent or consecutive. The
amended abstract of judgment thereafter reflects the sentence on count 3 to be concurrent,
reducing defendant’s indeterminate term to 150 years to life.
Defendant was also sentenced to five years for each of the two prior serious
felonies (§ 667, subd. (a)) and one year for each of the two prison priors (§ 667.5, subd.
(b)), consecutive to count 2, for a total determinate term of 12 years.
In November 2023, following the enactment of section 1172.75, which invalidated
nearly all section 667.5 prison priors as a sentencing enhancement, the court struck
defendant’s two section 667.5, subdivision (b), prison priors and set the matter for a full
resentencing hearing.
3
Defendant submitted a brief prior to the full resentencing hearing, which included,
among other things not relevant to this appeal, a Romero3 request that the court strike any
of his prior strikes.
The full resentencing hearing was conducted on March 21, 2025. The minute
order reflects that the court and counsel first conferred off the record. The minute order
also reflects that the court “read and considered [the] brief filed by Defense Counsel.”
The reporter’s transcript reflects only a short discussion between counsel and the trial
court summarizing what the People would be willing to agree to with respect to striking
enhancements and running portions of the sentence concurrently, followed by the court’s
sentencing, which the court stated was “[b]ased on the discussions between counsel.”
After striking the two prior serious felony conviction enhancements (§ 667, subd.
(a)) and two firearm enhancements (§ 12022.53, subd. (d)), the court sentenced defendant
to 75 years to life on count 1, 25 years to life on count 2 (consecutive to count 1), and 25
years to life on count 3 (concurrent) for a total indeterminate sentence of 100 years to life
and no determinate term.
Defendant timely noticed his appeal pursuant to California Rules of Court, rule
8.25(b)(5).
3 A trial court may dismiss allegations or findings of a defendant’s prior
convictions for a serious or violent felony that would otherwise qualify as a strike under
the Three Strikes law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529–
531 (Romero).)
4
DISCUSSION
A. SECTION 1172.75 RESENTENCING
Section 1172.75, subdivision (a), provides: “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 . . . is
legally invalid.”
“A defendant serving a term for a judgment that includes a now-invalid
enhancement [pursuant to § 1172.75] is entitled to resentencing.” (People v. Rhodius
(2025) 17 Cal.5th 1050, 1055.) When resentencing the defendant, the trial court may not
merely strike the invalid sentence enhancements; the defendant is entitled to a full
resentencing. (People v. Monroe (2022) 85 Cal.App.5th 393, 402.) Section 1172.75,
subdivision (d)(2), provides that “[t]he court shall 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.”
We review the trial court’s sentencing decisions for abuse of discretion. (People
v. Sandoval (2007) 41 Cal.4th 825.) However, “[a] court acting while unaware of the full
scope of its discretion is deemed to have abused it.” (People v. McDavid (2024) 15
Cal.5th 1015, 1023.) “ ‘Defendants are entitled to sentencing decisions made in the
exercise of the ‘informed discretion’ of the sentencing court.’ ” (People v. Salazar
(2023) 15 Cal.5th 416, 424 (Salazar).)
5
Although defendant raised various other arguments in his opening brief regarding
his Romero motion, the fundamental dispute that now overshadows the rest arises from
our Supreme Court’s decision in People v. Fletcher (2025) 18 Cal.5th 576 (Fletcher),
which was published during the pendency of this appeal and addresses the effect of recent
legislative changes regarding gang enhancements on the Three Strikes law. Fletcher is
relevant to this case because defendant’s three prior strikes (§§ 667, subd. (d); 1192.7,
subd. (c)) consisted of a 1999 conviction for kidnapping (§ 207), a 1999 conviction for
criminal threats (§ 422), and a 2002 conviction for unlawful possession of a firearm with
a gang enhancement (former § 12021, § 186.22).
“The ‘Three Strikes’ law is a sentencing scheme that requires a court to double or
sometimes triple the punishment for a felony offense if the defendant was previously
convicted of a crime that qualifies as a ‘serious’ or ‘violent’ felony. [§§ 667, subd. (e),
1170.12, subd. (c)] The ‘serious’ or ‘violent’ felonies that trigger this sentencing scheme,
commonly referred to as ‘strikes’ or ‘strike priors,’ are enumerated by statute.
(§§ 1192.7, subd. (c), 667.5, subd. (c).) .... The list of ‘serious’ felonies includes ‘any
felony offense, which would also constitute a felony violation of Section 186.22.’
(§ 1192.7, subd. (c)(28).) Section 186.22 defines substantive gang offenses and gang
enhancements.” (Fletcher, supra, 18 Cal.5th at p. 582.)
In Fletcher, the two defendants were both found to have prior convictions for
unlawful possession of a firearm (§ 29800, subd. (a)(1)) with gang enhancements
(§ 186.22, subd. (b)(1)(A)) that qualified the convictions as strikes for the Three Strikes
law. (Fletcher, supra, 18 Cal.5th at 584.) On the count of attempted murder, one
6
defendant’s sentence was doubled based on the conviction being his second strike, and
the other defendant’s sentence was tripled based on the conviction being his third strike.
(Id. at pp. 584-585.)
While the Fletcher defendants’ joint appeal was pending, the Legislature enacted
Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333), which among other
things, “changed the elements of gang offenses and enhancements by narrowing the
definitions of ‘criminal street gang,’ ‘pattern of criminal activity,’ and ‘what it means for
an offense to have commonly benefitted a street gang.’ ” (Fletcher, supra, 18 Cal.5th at
pp. 583, 585.) The defendants argued that Assembly Bill 333 required reversal of the
trial court’s finding that their firearm convictions constituted strike priors. (Id. at p. 585.)
Prior to the Fletcher decision, the courts of appeal were divided on whether the
narrowed definitions in Assembly Bill 333 applied to the determination of whether a past
conviction under section 186.22 qualified as a serious felony conviction for the purposes
of sentence enhancements and the Three Strikes law. (Fletcher, supra, 18 Cal.5th at p.
583.) In this appellate division, at the time of defendant’s sentencing in March 2025, we
had held that Assembly Bill 333 did not apply to the trial court’s findings on prior gang
enhancement charges qualifying as serious felony and strike priors, because doing so
would constitute an improper legislative amendment of a ballot initiative. (People v.
Fletcher (2023) 92 Cal.App.5th 1374, 1378-1379 [disapproved in Fletcher, supra, 18
Cal.5th at p. 608].)
The Supreme Court resolved the split between the courts of appeal, holding that
for prior convictions premised on section 186.22, “current law applies in determining
7
whether they qualify as prior serious felony convictions.” (Fletcher, supra, 18 Cal.5th at
p. 587.) The Fletcher defendants’ prior convictions pursuant to section 186.22
accordingly did not qualify as strikes or as prior serious felonies for the sentencing
enhancements set forth in section 667, subd. (a). (Fletcher, at pp. 605-607.)
Defendant’s 2002 firearm conviction is effectively identical to the one the
Fletcher court held could not qualify as a strike or prior serious felony4 based on the
application of Assembly Bill 333. The People concede that defendant’s 2002 firearm
conviction does not meet the revised definition of section 186.22 such that it no longer
qualifies as a strike.
Defendant argues that remand is necessary because the trial court did not have an
opportunity to exercise its discretion with the knowledge that one of his prior convictions
is now invalid as a strike pursuant to Fletcher. As defendant argues, “[t]here is a material
difference between a defendant with three prior strikes from two separate cases spanning
1999 to 2002 and a defendant with two prior strikes from a single 1999 case.”
The People argue that the harmless error standard should apply because even if
one of defendant’s strikes are eliminated, he would still have three strikes. The People
assert that we should apply the standard set forth in Watson to determine that there has
been no prejudice to defendant and therefore remand is not required.5
4 The trial court struck the 10-year determinate term that was based on section
667, subd. (a), so it is not at issue in this appeal.
5 The People’s brief cites the case name “Watson” multiple times but does not
provide a citation to the case. We are able to ascertain from context that this is a
reference to People v. Watson (1956) 46 Cal.2d 818 (Watson).
8
The Watson test for assessing prejudice is applied “to errors of state law that do
not rise to the level of federal constitutional error” and provides that an error is harmless
“unless it is ‘reasonably probable’ the outcome would have been different in the absence
of the error.” (People v. Lynch (2024) 16 Cal.5th 730, 755.)
We disagree with the People that the Watson test would be appropriate under these
circumstances, because our Supreme Court expressly disapproved the Watson test where
the trial court was not aware of the scope of its discretionary powers due to a retroactive
change in the law. (Salazar, supra, 15 Cal.5th at p. 425.) Although not precisely on
point, Salazar provides guidance regarding how we should review sentencing orders that
are subject to new laws that become effective during the pendency of appeal.
In Salazar, after the defendant had been sentenced to the middle prison term, and
while his appeal was pending, the Legislature enacted new statutes that created a
presumption in favor of the lower term under certain circumstances that applied to the
defendant. (Salazar, supra, 15 Cal.5th at p. 423.) On review, the Supreme Court
observed that “when the applicable law governing the defendant’s sentence has
substantively changed after sentencing, it is almost always speculative for a reviewing
court to say what the sentencing court would have done if it had known the scope of its
discretionary powers at the time of sentencing.” (Id. at p. 425.) The Salazar court
accordingly held that “when … a sentencing court was not fully aware of the scope of its
discretionary powers, ‘the appropriate remedy is to remand for resentencing unless the
record “clearly indicate[s]” that the trial court would have reached the same conclusion
“even if it had been aware that it had such discretion.” ’ ”
9
We acknowledge that the Salazar decision is premised on the trial court’s scope of
discretion being changed during pendency of appeal, whereas here the trial court’s
discretion has remained the same but a material fact about defendant’s past record has
been modified since the time of sentencing. We nevertheless find the test set forth in
Salazar to be applicable here, because the Salazar court itself observed the similarity
between the two scenarios: “A court which is unaware of the scope of its discretionary
powers can no more exercise … ‘informed discretion’ than one whose sentence is or may
have been based on misinformation regarding a material aspect of a defendant’s
record.’ ” (Salazar, supra, 15 Cal.5th at p. 424.)
In this instance, the trial court could not have possibly known at the time of
sentencing that one of defendant’s prior convictions could be invalidated as a strike,
because the Supreme Court’s decision in Fletcher had not been published and the
understanding of the law in this district at the time supported the strike remaining valid.
We emphasize, as the Supreme Court did under similar circumstances, that the trial court
here did not err in actuality because “[i]t followed the law in effect at the time of [the]
defendant’s trial,” (People v. Lynch, supra, 16 Cal.5th at 750) or at least the law as it was
interpreted in this district at the time. But because the law regarding how the trial court
must view defendant’s criminal record has now changed, in order to affirm the judgment
we must review the record to determine if it “clearly indicates” that the trial court would
have reached the same conclusions even if it had been aware of the Fletcher decision at
the time of sentencing. (Salazar, supra, 15 Cal.5th at p. 425.)
10
Here, where the entirety of the discussion of the reasoning behind the trial court’s
sentencing order appears to have taken place off the record, we cannot discern whether
different orders may have been made if the court knew at the time that defendant’s 2002
conviction could be invalidated as a strike. The reviewing court “may not substitute its
own view of the offenses for the sentencing court’s in determining whether remand is
appropriate.” (Salazar, supra, 15 Cal.5th at p. 427.)
Because we cannot be certain what the court would have ordered if it had the
benefit of the Fletcher decision at the time of sentencing, we are required to reverse and
remand to the trial court. (Salazar, supra, 15 Cal.5th at p. 425.) To be clear, on remand
the trial court is not required to grant defendant’s Romero motion to dismiss any of his
other strikes or order a sentence that is in any way different from what it ordered
previously. It must simply make its rulings with the knowledge that the current version
of section 186.22 must be applied to defendant’s 2002 conviction to determine if it is a
strike.
The People concede that the 2002 conviction does not qualify as a strike based on
the record on appeal, but request that they be permitted to retry the issue of whether
defendant’s 2002 conviction qualifies as a strike based on the current version of section
186.22. Retrial of the strike under the current law would be appropriate. (Fletcher,
supra, 18 Cal.5th at 607-608.)
Because we are reversing based on the Fletcher issue, we need not address
defendant’s other claims on appeal regarding the Romero motion.
11
B. RESTITUTION FINE
A restitution fine of $200 was imposed on defendant in 2011. The People
concede, and we agree, that the trial court erred in reimposing defendant’s $200
restitution fine in light of section 1465.9, subdivision (d), which provides that any
restitution fine is unenforceable and uncollectible upon the expiration of 10 years after
date of imposition. We will order that the portion of the judgment regarding the
restitution fine be vacated.
DISPOSITION
The trial court’s March 21, 2025, sentencing orders are reversed and remanded for
further proceedings in accordance with this opinion. The trial court’s order regarding the
$200 restitution fine is vacated and the trial court may not reissue the fine on remand. In
all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
CODRINGTON
J.
RAPHAEL
J.
12
