People v. Montano Docket: F079222 (Fifth Appellate District), Opinion Date: June 22, 2022. Defendants were convicted of first degree murder with the special circumstance of lying in wait, and unlawful participation in a criminal street gang ("gang enhancement"). On appeal, Defendants sought reversal of the gang enhancement under the newly passed AB 333, which amended Cal. Penal Code section 186.22 and added a new statute, section 1109 (requiring bifurcation of gang enhancement allegations). The court agreed with Defendants that AB 333 is fully retroactive to all non-final judgments. Thus, the court reversed Defendants gang enhancements. However, the court determined that, based on the language of section 1109, the statute does not apply to special circumstance allegations involving gang murders. Section 1109 says nothing about the special circumstance statutes, and its provisions are specific to section 186.22, subdivisions (a), (b), and (d). Moreover, the procedures required by section 1109 conflict with the procedures set forth in section 190.1 et seq. Thus, the court held that section 1109, as originally enacted by Assembly Bill 333, does not apply to the determination of special circumstance allegations under section 190.2(a)(22). The court reversed all Defendant's substantive convictions under section 186.22(a) as well as the gang enhancements under section 186.22(b). The court also reversed several firearm enhancements for unrelated reasons, otherwise affirming Defendant's murder convictions. The court remanded for further proceedings.
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