The Court of Appeal vacated appellants’ first-degree murder convictions and remanded the case in light of Senate Bill 775, which, among other things, provided that a defendant whose conviction has not yet become final may challenge on direct appeal the validity of a murder conviction under Penal Code sections 188 and 189, as amended by Senate Bill No. 1437, without first petitioning the superior court. Here, the trial court’s felony murder instructions did not include the elements required to prove felony murder under Penal Code section 189 as amended by SB 1437 because those amendment had not yet been enacted. The Court also vacated the jury’s gang-related findings and convictions, on the basis that both the instructional error resulting from Assembly Bill No. 333’s amendments to Penal Code section 186.22 and the admission of significant amounts of inadmissible hearsay and testimonial hearsay in violation of Crawford v. Washington (2004) 541 U.S. 36 and People v. Sanchez (2016) 63 Cal.4th 665 constituted error that prejudiced appellants. The Court further held that the Legislature’s amendment of Penal Code section 1170 in Senate Bill No. 567, required the Court to vacate the upper term sentence of one of the appellants. The Court also agreed that one of the cases should be remanded for the trial court to exercise its recently authorized discretion to strike or dismiss a firearm enhancement. Finally, the Court held that two stayed enhancements (Pen. Code, §§ 12022 & 186.22) must be vacated/stricken, and that the 10-year enhancement under Penal Code section 186.22 was improper.
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