Mar. 9, 2023 – People v. Oliva (4th Dist., Div. 2, E073979)

The Court of Appeal holds that AB 333’s amendments to PC 186.22 apply retroactively to defendant’s case and vacates the true findings on the gang enhancement (PC 186.22(b)(1)(C)) and gang murder special circumstance (PC 190.2(a)(22)). The court rejects the People’s argument that AB 333’s amendments to PC 186.22, when applied in the context of the gang murder special circumstance, constitute an unlawful amendment of Prop 21. The court also assumes that PC 1109 (AB 333’s bifurcation provision) applies retroactively but that the failure to bifurcate the gang enhancement here was harmless.

Note: Both the Prop 21 issue and the PC 1109 issue are currently pending in the California Supreme Court, in People v. Rojas (S275835) [Prop 21] and People v. Burgos (S274743) [PC 1109].