People v. Sek ( 2022 )


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  • Filed 2/1/22
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION ONE
    THE PEOPLE,                                B309003
    Plaintiff and Respondent,          (Los Angeles County
    Super. Ct. No. NA087661)
    v.
    SAMNANG SEK,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of Los Angeles
    County, Gary J. Ferrari, Judge. Affirmed in part, reversed in part.
    ____________________________
    Joshua L. Siegel, under appointment by the Court of Appeal,
    for Defendant and Appellant.
    Rob Bonta, Attorney General, Lance E. Winters, Chief
    Assistant Attorney General, Susan Sullivan Pithey, Assistant
    Attorney General, Noah P. Hill and Stephanie C. Santoro, Deputy
    Attorneys General, for Plaintiff and Respondent.
    ____________________________
    The Legislature recently enacted Assembly Bill No. 333
    (2021−2022 Reg. Sess.) (Assembly Bill No. 333), which altered both
    the substantive and procedural law regarding gang enhancements
    under Penal Code1 section 186.22. Under the new law, in order
    to prove that the defendant committed a crime for the benefit of a
    criminal street gang, the prosecution must show that the benefit
    to the gang was “more than reputational.” (Stats. 2021, ch. 699, § 3,
    enacting § 186.22, subd. (g).)
    Defendant and appellant Samnang Sek, who was convicted of
    attempted murder and other offenses for his role in a gang shooting,
    contends that this law applies retroactively to him. He argues that
    because the jury instructions did not reflect this change in the law,
    the jury’s findings on the gang enhancements in his case must be
    reversed. We agree.
    FACTS AND PROCEEDINGS BELOW
    In 2012, a jury convicted Sek of (counts 1 and 5) attempted
    murder (§§ 187, 664), (count 2) shooting at an occupied vehicle
    (§ 246), (count 3) assault with a semiautomatic firearm (§ 245,
    subd. (b)), and (count 4) being an accessory after the fact (§ 32).
    The jury found that Sek committed all these crimes for the benefit
    of a criminal street gang (§ 186.22, subd. (b)) and found that
    both counts of attempted murder were willful, deliberate, and
    premeditated (§ 664, subd. (a)), and that a principal discharged
    a firearm in committing the crimes (§ 12022.53, subds. (c) & (e)).
    As we explained in more detail in our prior opinion in
    this case (People v. Sek et al. (Apr. 17, 2015, B251196, B254949,
    1 Unless otherwise specified, subsequent statutory references
    are to the Penal Code.
    2
    B254954) [nonpub. opn.]),2 Sek drove in pursuit of the victim,
    allowing his passenger, codefendant and fellow gang member Terry
    My, to fire several shots at the victim’s car. We reversed one count
    of attempted murder because the trial court erroneously instructed
    the jury on a “kill zone” theory, and we vacated the jury’s finding
    that the second count of attempted murder was committed willfully,
    deliberately, and with premeditation because the information did
    not include this allegation. (See ibid.) We otherwise affirmed the
    judgment and remanded the case for further proceedings. (Ibid.)
    On remand, the trial court sentenced Sek to 15 years to life
    in prison for count 2, firing at an occupied motor vehicle for the
    benefit of a criminal street gang. (§§ 246, 186.22, subd. (b)(4)(B).)
    The court imposed a concurrent sentence of 16 months in prison
    for count 4, being an accessory (§ 32), along with a three-year
    gang enhancement (§ 186.22, subd. (b)(1)(A)). The court stayed
    under section 654 the sentences for (count 1) attempted murder
    and (count 3) assault with a semiautomatic firearm. The stayed
    sentence for attempted murder consisted of a base term of
    nine years (§ 664, subd. (a)), plus a 10-year gang enhancement
    (§ 186.22, subd. (b)(1)(C)), plus 20 years for discharging a firearm
    (§ 12022.53, subds. (c) & (e)). The stayed sentence for assault with
    a semiautomatic firearm consisted of a base term of nine years
    (§ 245, subd. (b)), plus 10 years for a gang enhancement. (§ 186.22,
    subd. (b)(1)(C).)
    2 The Supreme Court granted review of the opinion pending
    its decision in People v. Canizales (2019) 
    7 Cal.5th 591
    , then
    subsequently dismissed review. (People v. Sek (Sept. 11, 2019,
    S226721).)
    3
    DISCUSSION
    A.    Assembly Bill No. 333
    A defendant who commits a felony “for the benefit of, at the
    direction of, or in association with a criminal street gang, with the
    specific intent to promote, further, or assist in criminal conduct by
    gang members” is subject to increased punishment upon conviction.
    (§ 186.22, subd. (b)(1).) As noted above, Sek’s sentence included
    enhancements under this provision. It also included a 20-year
    firearm enhancement for discharging a firearm that applied
    only because Sek acted for the benefit of a gang. (See § 12022.53,
    subds. (c) & (e)).3 In addition, because the jury convicted him of
    firing into an occupied vehicle for the benefit of a street gang, he
    was subject to a sentence of 15 years to life under section 186.22,
    subdivision (b)(4)(B). Without the gang finding, the maximum
    sentence for this offense would have been seven years. (See § 246.)
    After the court imposed sentence and while his appeal was
    pending, the Legislature enacted Assembly Bill No. 333, which
    amended section 186.22 to impose new substantive and procedural
    requirements for gang allegations. Most notably, the law defined
    “to benefit, promote, further, or assist” as “to provide a common
    benefit to members of a gang where the common benefit is more
    than reputational. Examples of a common benefit that are more
    than reputational may include, but are not limited to, financial
    gain or motivation, retaliation, targeting a perceived or actual gang
    rival, or intimidation or silencing of a potential current or previous
    witness or informant.” (§ 186.22, subd. (g).) In addition, the law
    created a stricter requirement for proof of “a pattern of criminal
    gang activity,” which is necessary to prove that the group with
    3The trial court stayed the sentence on the enhancements for
    attempted murder and assault with a firearm under section 654.
    4
    which the defendant is associated is indeed a criminal street gang.
    (See § 186.22, subd. (f).) Previously, the prosecution needed to
    prove only that those associated with the gang had committed
    at least two offenses from a list of predicate crimes on separate
    occasions within three years of one another. (See former § 186.22,
    subd. (e).) Under the newly amended law, the offense with which
    the defendant is currently charged cannot be used as one of the
    two predicate offenses. (§ 186.22, subd. (e)(2).) In addition, both
    predicate offenses must have been committed “within three years of
    the date the current offense is alleged to have been committed,” by
    gang “members,” and must have been for the “common[ ] benefit[ ]
    [of] a criminal street gang.” (§ 186.22, subd. (e)(1).) Finally, under
    Assembly Bill No. 333, the defendant may request a bifurcated
    trial, in which the defendant is first tried for the underlying offense,
    and only upon conviction is tried for any gang enhancements.
    (§ 1109, subd. (a).)
    Sek contends that the amendments changing the definition
    of “benefit of a criminal street gang” apply retroactively to his
    case, and that, because the jury convicted him under the prior
    version of the law, we must reverse the convictions on the gang
    enhancements. The Attorney General agrees that the amendments
    apply retroactively but argues that we should affirm the conviction
    because the error was harmless beyond a reasonable doubt. We
    agree with Sek and reverse the gang enhancements.
    1.     Retroactivity of the new law
    Ordinarily, “a new statute is presumed to operate
    prospectively absent an express declaration of retrospectivity or
    a clear indication that the electorate, or the Legislature, intended
    otherwise.” (Tapia v. Superior Court (1991) 
    53 Cal.3d 282
    , 287
    (Tapia).) In In re Estrada (1965) 
    63 Cal.2d 740
     (Estrada), however,
    5
    our Supreme Court recognized an exception to this rule. The court
    explained that “[w]hen the Legislature amends a statute so as to
    lessen the punishment it has obviously expressly determined that
    its former penalty was too severe and that a lighter punishment
    is proper as punishment for the commission of the prohibited
    act. It is an inevitable inference that the Legislature must have
    intended that the new statute imposing the new lighter penalty
    now deemed to be sufficient should apply to every case to which
    it constitutionally could apply. The amendatory act imposing
    the lighter punishment can be applied constitutionally to acts
    committed before its passage provided the judgment convicting the
    defendant of the act is not final. This intent seems obvious, because
    to hold otherwise would be to conclude that the Legislature was
    motivated by a desire for vengeance, a conclusion not permitted in
    view of modern theories of penology.” (Id. at p. 745.)
    In subsequent years, the court has expanded the application
    of this doctrine broadly “to statutes changing the law to the
    benefit of defendants.” (Tapia, supra, 53 Cal.3d at p. 301.) Thus,
    the retroactivity principle applies to ameliorative changes in
    enhancements as well as to substantive offenses (People v. Nasalga
    (1996) 
    12 Cal.4th 784
    , 792), and to changes in the law that merely
    allow for a possibility of reduced punishment (People v. Francis
    (1969) 
    71 Cal.2d 66
    , 76). It also applies where a new law
    decriminalizes the defendant’s conduct entirely. (People v. Rossi
    (1976) 
    18 Cal.3d 295
    , 302.)
    Most relevant to this case, the Supreme Court in Tapia
    held that the presumption of retroactivity applies to laws that
    change the substantive requirements for an enhancement in the
    defendant’s favor. (Tapia, 
    supra,
     53 Cal.3d at pp. 300–301.) In
    Tapia, the electorate had recently passed an initiative requiring
    proof of intent to kill for certain special circumstance allegations.
    6
    Because the initiative “redefine[d], to the benefit of defendants,
    conduct subject to criminal sanctions” (id. at p. 301), the court held
    that it applied retroactively.
    Appellate courts have applied this principle widely. For
    example, in 2010, the Legislature enacted a law limiting felony
    petty theft to defendants with three prior theft convictions rather
    than only one. (Assembly Bill No. 1844 (Reg. Sess. 2009−2010)
    Stats. 2010, ch. 219, § 15.) In People v. Vinson (2011) 
    193 Cal.App.4th 1190
     (Vinson), the court held that the law applied
    retroactively because “akin to adding an element to a crime or an
    enhancement,” the amendment “benefits a defendant by making it
    less likely that he or she will qualify for felony-level punishment.”
    (Id. at p. 1197.) Similarly, in 1992, the Legislature enacted a law
    limiting the application of a sentence enhancement based on the
    amount of property loss. Previously, the enhancement applied if a
    defendant committed a felony causing a loss in excess of $25,000;
    under the new law, a $50,000 loss was required. (People v. Roberts
    (1994) 
    24 Cal.App.4th 1462
    , 1465.) In Roberts, the court held
    that because the law effectively reduced the punishment to which
    the defendants in the case were subject, it applied retroactively
    under Estrada. (Id. at p. 1466.) In People v. Figueroa (1993)
    
    20 Cal.App.4th 65
    , the court held that a statute redefining an
    enhancement for committing drug offenses near a school applied
    retroactively. Under the statute in effect when the defendant
    committed the crime, the prosecution was required to prove only
    that the offense was committed within 1,000 feet of a school. The
    statute was later amended to add a requirement that school be in
    session or minors nearby at the time of the offense. (Id. at p. 69.)
    At least one of the amendments in Assembly Bill No. 333
    clearly meets the requirements for retroactivity as outlined by these
    cases: To prove that a defendant committed a felony “for the benefit
    7
    of, at the direction of, or in association with a criminal street gang,”
    (§ 186.22, subd. (b)(1)) the new law requires the prosecution to show
    that “the common benefit [to the gang] is more than reputational.”
    (§ 186.22, subd. (g), enacted by Assembly Bill No. 333 (Stats. 2021,
    ch. 699, § 3).) The law thus redefines the enhancement for the
    benefit of the defendant. Previously, a defendant who had
    committed an offense to benefit the reputation of a criminal street
    gang, but with no other benefit, was subject to the enhancement.
    (See People v. Albillar (2010) 
    51 Cal.4th 47
    , 63 [under former
    section 186.22, subd. (b)(1), “[e]xpert opinion that particular
    criminal conduct benefited a gang by enhancing its reputation for
    viciousness can be sufficient to raise the inference that the conduct
    was ‘committed for the benefit of . . . a[ ] criminal street gang’ ”].)
    Now, he cannot be. The law has “redefine[d], to the benefit of
    defendants, conduct subject to criminal sanctions” (Tapia, supra,
    53 Cal.3d at p. 301), and it therefore applies retroactively under
    Estrada.4
    2.     Harmless error
    The Attorney General concedes that Assembly Bill No. 333
    applies retroactively, but contends that reversal is not required
    because the error was harmless. We disagree.
    By requiring proof for a gang enhancement that the benefit
    to the gang was more than reputational, Assembly Bill No. 333
    essentially adds a new element to the enhancement. When jury
    instructions are deficient for omitting an element of an offense,
    they implicate the defendant’s federal constitutional rights, and we
    review for harmless error under the strict standard of Chapman v.
    4 Because we reverse the gang enhancement findings on the
    basis of this change alone, we need not and do not decide whether
    the other portions of Assembly Bill No. 333 also apply retroactively.
    8
    California (1967) 
    386 U.S. 18
     (Chapman). (People v. Flood (1998)
    
    18 Cal.4th 470
    , 502–503; People v. Lewis (2006) 
    139 Cal.App.4th 874
    , 884.) The Attorney General concedes that this standard
    applies here, where the new element to the offense is introduced
    through the retroactive application of a new law, and we see
    no reason to disagree. Under the Chapman standard, reversal
    is required unless “it appears beyond a reasonable doubt that the
    error did not contribute to th[e] jury’s verdict.” (People v. Flood,
    supra, 18 Cal.4th at p. 504.)
    The Attorney General argues that the error was harmless
    under this standard, noting that the prosecution’s expert witness
    testified about benefits to the gang that were not merely
    reputational. The expert testified that gang members may commit
    crimes to retaliate against rival gangs, to defend and to try to
    expand their territory. In addition, according to the expert, gang
    shootings instill fear in the community, giving the gang “free [rein]
    to commit crimes in that area without any . . . repercussions of
    their criminal acts,” diminishing the gang members’ “chance of
    them getting caught by the police because of the community’s fear
    of retaliation . . . by the gang.” If community members are afraid,
    they will be “less likely to report crimes committed by gang
    members.”
    But in order 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. As the United States Supreme Court explained in
    Sullivan v. Louisiana (1993) 
    508 U.S. 275
    , “the question . . . is not
    what effect the constitutional error might generally be expected to
    have upon a reasonable jury, but rather what effect it had upon the
    guilty verdict in the case at hand. . . . The inquiry, in other words,
    is not whether, in a trial that occurred without the error, a guilty
    9
    verdict would surely have been rendered, but whether the guilty
    verdict actually rendered in this trial was surely unattributable to
    the error.” (Id. at p. 279.)
    Courts have found harmless error under this standard where
    the missing element from an instruction was uncontested or proved
    as a matter of law. For example, in People v. Merritt (2017) 
    2 Cal.5th 819
    , the trial court omitted the elements of robbery from
    the jury instructions, but the court held that the error was harmless
    because the only contested issue at trial was the identity of the
    defendant. (Id. at p. 832.) “Defendant knew what the elements of
    robbery were, and he had the opportunity to present any evidence
    he wished on the subject. ‘[W]here a reviewing court concludes
    beyond a reasonable doubt that the omitted element was
    uncontested and supported by overwhelming evidence, such that
    the jury verdict would have been the same absent the error, the
    erroneous instruction is properly found to be harmless.’ ” (Ibid.,
    quoting Neder v. United States (1999) 
    527 U.S. 1
    , 17.) Similarly, in
    Vinson, the court affirmed the defendant’s conviction of petty theft
    with a prior theft conviction even though the law had changed after
    trial to require the proof of three prior convictions, rather than one.
    (See Vinson, supra, 193 Cal.App.4th at p. 1200.) The defendant
    conceded that he had suffered two prior convictions, and his
    attorney stipulated at trial to a third conviction. Thus, there was
    no dispute as to whether the new element in the law was proved.
    (See ibid.)
    In this case, the basis of the jury’s verdict is not so clear.
    The prosecution’s expert testified about several ways in which
    a crime could benefit a criminal street gang, but one of these was
    reputational. When asked whether a hypothetical crime similar
    to the one Sek committed could “enhance the reputation” of a gang,
    the expert answered, “Yes.” The expert went on to state that this
    10
    type of crime “enhances not only the individual gang members . . .
    but enhances the status and their reputation of the . . . gang as
    a whole.” In closing arguments, the prosecutor argued that Sek’s
    crime benefits the gang because “[t]hey want you to know who
    they are.” Although there was a great deal of evidence of benefits
    to the gang that went beyond reputational, we cannot rule out
    the possibility that the jury relied on reputational benefit to the
    gang as its basis for finding the enhancements true. Thus, the
    instructional error on this question was not harmless under the
    Chapman standard.
    Our decision does not bar the prosecution from retrying
    Sek on the gang enhancements upon remand. “Because we do not
    reverse based on the insufficiency of the evidence required to prove
    a violation of the statute as it read at the time of trial, the double
    jeopardy clause of the Constitution will not bar a retrial. (People v.
    Figueroa[, supra,] 20 Cal.App.4th [at p.] 72, fn. 2 . . . ; see Burks v.
    United States (1978) 
    437 U.S. 1
    , 18 . . . .) ‘ “Where, as here,
    evidence is not introduced at trial because the law at that time
    would have rendered it irrelevant, the remand to prove that
    element is proper and the reviewing court does not treat the issue
    as one of sufficiency of the evidence.” [Citation.]’ (People v. Ramos
    (2016) 
    244 Cal.App.4th 99
    , 103 . . . .)” (People v. Monk (2018) 
    21 Cal.App.5th Supp. 1
    , 7−8; accord, People v. Figueroa, supra, 20
    Cal.App.4th at pp. 71–72.)
    B.    Other Allegations of Error
    Sek alleges several other errors in sentencing, some that
    he claims the trial court committed when imposing sentence, and
    others that result from the retroactive application of new law.
    Although our resolution of the gang enhancement issue requires
    reversing Sek’s sentence and resentencing him (after a possible new
    11
    trial on the gang enhancements), we discuss these issues briefly in
    the interest of clarity and of forestalling future disputes.
    1.     Imposition of both firearm and gang
    enhancements
    If a defendant commits a felony for the benefit of a
    criminal street gang, the defendant may be subject to a firearm
    enhancement under section 12022.53 if any principal to the crime
    used a firearm. (See § 12022.53, subd. (e)(1).) In cases where
    the defendant did not personally use a firearm, however, the
    court may not impose a gang enhancement under section 186.22,
    subdivision (b) in addition to the firearm enhancement. (See
    § 12022.53, subd. (e)(2).) In this case, the trial court imposed
    both a firearm enhancement (§ 12022.53, subds. (c) & (e)(1)) and a
    gang enhancement (§ 186.22, subd. (b)(1)(C)) in Sek’s sentence for
    attempted murder. But as all parties agree, Sek did not personally
    use the gun. Instead, his codefendant My was the shooter. Thus,
    the trial court erred by including a gang enhancement in the
    sentence for attempted murder.
    The trial court also included a 10-year gang enhancement
    under section 186.22, subdivision (b)(1)(C) for Sek’s conviction
    of assault with a semiautomatic firearm (§ 245, subd. (b)).
    But as Sek points out, an enhancement under section 186.22,
    subdivision (b)(1)(C) applies only if the substantive offense is
    a violent felony as defined under section 667.5, subdivision (c).
    Assault with a semiautomatic firearm is not so defined.5 (See
    § 667.5, subd. (c).) The offense is defined as a serious felony,
    however (see § 1192.7, subd. (c)(31)), and as a result, the trial court
    5 If Sek had personally used a firearm in the offense,
    the crime would have been a violent felony under section 667.5,
    subdivision (c)(8).
    12
    should have imposed a five-year enhancement under section 186.22,
    subdivision (b)(1)(B) instead of the 10-year enhancement.
    2.    Restitution and parole revocation fines
    The trial court imposed a restitution fine of $4,500 under
    section 1202.4, subdivision (b), and a parole revocation fine of
    $4,500 under section 1202.45, subdivision (a). The latter fine was
    suspended pending the revocation of Sek’s parole. Sek contends
    that the court abused its discretion in imposing these fines because
    the court calculated the amount of the fine according to a formula
    applicable at the time of sentencing, rather than the formula that
    applied at the time he committed the crimes. We conclude that Sek
    forfeited the issue, and that his attorney did not provide ineffective
    assistance of counsel by not objecting to the fine.
    Because “the imposition of restitution fines constitutes
    punishment, . . . [it] is subject to the proscriptions of the ex post
    facto clause and other constitutional provisions.” (People v. Souza
    (2012) 
    54 Cal.4th 90
    , 143.) Thus, the court was required to apply
    the law in effect when Sek committed the offenses in 2011, without
    subsequent amendments, in determining Sek’s restitution fine.
    (See ibid.)
    In most relevant respects, the restitution fine statute is
    substantially the same now as it was in 2011. Then as now, except
    where there are “compelling and extraordinary reasons for not
    doing so,” the trial court must impose a restitution fine in all cases
    where the defendant is convicted of a crime. (§ 1202.4, subd. (b);
    Stats. 2010, ch. 351, § 9 [enacting version of § 1202.4 in effect
    in 2011].) The court has discretion to set the amount of the
    fine “commensurate with the seriousness of the offense,” up to
    a maximum of $10,000 in felony cases. (§ 1202.4, subd. (b)(1);
    Stats. 2010, ch. 351, § 9.) The statute also provides a formula that
    13
    the court may (but is not required to) use in calculating the amount
    of the fine, consisting of the minimum fine “multiplied by the
    number of years of imprisonment the defendant is ordered to serve,
    multiplied by the number of felony counts of which the defendant
    is convicted.” (Stats. 2010, ch. 351, § 9; § 1202.4, subd. (b)(2).) In
    performing this calculation, the court may not include felony counts
    for which punishment is stayed pursuant to section 654. (People v.
    Le (2006) 
    136 Cal.App.4th 925
    , 934 (Le).) The court must impose
    a parole revocation fine equal to the amount of the restitution
    fine, suspended pending the possible revocation of the defendant’s
    parole. (§ 1202.45, subd. (a).)
    The statute has changed in one important way since 2011,
    however. At the time Sek committed the offense, the minimum
    fine was $200. (See Stats. 2010, ch. 351, § 9.) The Legislature
    subsequently amended Section 1202.4 to increase that amount
    to $240 in 2012, $280 in 2013, and to the current amount of $300
    beginning in 2014. (Stats. 2011, ch. 358, § 1.)
    Sek contends that the trial court meant to apply the formula
    in section 1202.4, subdivision (b)(2) to determine the amount of the
    fine, but erred by using $300 as the minimum amount rather than
    $200. At the sentencing hearing, the court imposed a “$300 per
    year restitution fine.”
    Sek forfeited this claim by failing to object to the amount of
    the fine in the trial court: “[T]he rule of forfeiture is applicable to
    ex post facto claims [citation], particularly where any error could
    easily have been corrected if the issue had been raised at the
    sentencing hearing.” (People v. Martinez (2014) 
    226 Cal.App.4th 1169
    , 1189 (Martinez).)
    14
    Sek also contends that his attorney rendered ineffective
    assistance by failing to call attention to the change in the
    minimum fine. In similar cases, appellate courts have indeed
    reduced fines where an attorney failed to object to the incorrect
    application of the formula for restitution fines. (See, e.g., Le, supra,
    136 Cal.App.4th at pp. 935–936; Martinez, supra, 226 Cal.App.4th
    at pp. 1188–1190.)
    But in order to prevail on a claim of ineffective assistance
    of counsel, a defendant must show not only that his attorney’s
    performance was defective, but also that he suffered prejudice as
    a result. (Le, supra, 136 Cal.App.4th at p. 935.) Sek cannot make
    such a showing. The formula in section 1202.4, subdivision (b)(2)
    calls for the court to calculate the minimum fine, “multiplied by the
    number of years of imprisonment the defendant is ordered to serve,
    multiplied by the number of felony counts of which the defendant is
    convicted.” The trial court appears to have multiplied $300 by the
    minimum number of years Sek was ordered to serve, 15, to arrive
    at a fine of $4,500. But the court did not multiply the fine by two to
    account for the number of felony counts of which Sek was convicted.
    In addition to his conviction of firing into an occupied vehicle for
    which the court imposed the 15-year minimum sentence, Sek was
    also convicted of being an accessory after the fact.6
    If the court had correctly applied the formula, it would
    have multiplied $200 (the minimum fine as of 2011) by 15 for
    the minimum number of years Sek was ordered to serve, and by
    two for the number of felony counts of which he was convicted, and
    arrived at a total fine of $6,000. Sek’s attorney did not prejudice
    6 Sek’s convictions of attempted murder and assault
    with a semiautomatic firearm are not included in the calculation
    because the trial court stayed the sentence on those offenses under
    section 654. (See Le, supra, 136 Cal.App.4th at p. 934.)
    15
    him by failing to object to a $4,500 fine. This is not the same
    situation as in Martinez, where the court stated that “[w]e cannot
    conceive of any tactical reason for counsel’s failure to object.”
    (Martinez, supra, 226 Cal.App.4th at p. 1190.)
    3.    Errors in Presentence Credits and Abstract
    of Judgment
    Sek contends that the trial court erred by failing to award a
    sufficient number of credits for time served prior to sentencing. The
    Attorney General agrees, as do we.
    “[W]hen a prison term already in progress is modified as the
    result of an appellate sentence remand, the sentencing court must
    recalculate and credit against the modified sentence all actual time
    the defendant has already served, whether in jail or prison, and
    whether before or since he was originally committed and delivered
    to prison custody.” (People v. Buckhalter (2001) 
    26 Cal.4th 20
    , 29.)
    The court must also calculate conduct credits for the period before
    the original sentencing hearing. (Id. at p. 30.) The agency to
    which the defendant is committed—in this case the Department
    of Corrections and Rehabilitation—calculates and applies conduct
    credit for time following the original sentencing hearing. (Id. at
    pp. 30–31, 37.)
    In this case, the trial court did not update the defendant’s
    credits for actual time served between the original sentencing
    hearing and the resentencing hearing.
    Sek also notes that the record includes several clerical errors.
    A minute order incorrectly deleted the trial court’s order staying the
    sentence for attempted murder pursuant to section 654. The same
    minute order misstated the length of the firearm enhancement for
    attempted murder and misreported the name of the attorney who
    represented Sek at the sentencing hearing.
    16
    4.    Amendment to sentencing under section 654
    Section 654 prohibits multiple punishment for any single act
    or omission. If a single action or course of conduct by a defendant
    violates multiple laws, “the distinct crimes may be charged in
    separate counts and may result in multiple verdicts of guilt, [but]
    the trial court may impose sentence for only one offense.” (People v.
    Liu (1996) 
    46 Cal.App.4th 1119
    , 1135.) Until recently, the law
    required trial courts to impose sentence “under the provision that
    provides for the longest potential term of imprisonment.” (Former
    § 654.) In 2021, however, the Legislature enacted Assembly Bill
    No. 518 (Stats. 2021, ch. 441), which removes the requirement
    to impose the longest prison term. As the preamble to the bill
    explains, it allows “an act or omission that is punishable in different
    ways by different laws to be punished under either of those
    provisions.” (Ibid.)
    Sek and the Attorney General agree, as do we, that, under
    the principles of Estrada described above (Discussion part A.1,
    ante), the law applies retroactively to defendants like Sek whose
    convictions were not yet final when the law became effective
    January 1, 2022.
    In this case, the jury convicted Sek of firing into an occupied
    vehicle (§ 246) and attempted murder (§§ 187, 664), two crimes
    based on a single course of conduct. Because the former crime
    carried a longer potential sentence than the latter, the trial
    court stayed the sentence for attempted murder. In any future
    sentencing hearing, the trial court will have discretion under the
    new version of section 654 to sentence Sek under either provision.
    5.    Senate Bill No. 81
    In 2021, the Legislature enacted Senate Bill No. 81, which
    amended section 1385 to specify factors that the trial court must
    17
    consider when deciding whether to strike enhancements from a
    defendant’s sentence in the interest of justice. (Stats. 2021, ch. 721,
    § 1.) Most notably, under the newly enacted subdivision (c)(2)(C)
    of section 1385,7 if “[t]he application of an enhancement could result
    in a sentence of over 20 years,” the trial court “shall . . . dismiss[ ]”
    the enhancement. (Stats. 2021, ch. 721, § 1.) We agree with Sek
    that this law, as an ameliorative statute that reduces potential
    sentences for criminal defendants, applies retroactively under
    Estrada principles to defendants like Sek whose cases were not yet
    final when the law became effective. The court must apply the new
    law in any resentencing proceedings in this case.
    7   Senate Bill No. 81 appears to include a clerical error.
    The text of the law refers to certain subparagraphs (A) to (I)
    as part of subdivision (c)(2) of section 1385, but the text of the
    bill lists these subparagraphs under subdivision (c)(3). (Stats.
    2021, ch. 721, § 1.) We describe the provision at issue here
    as subdivision (c)(2)(C) because that appears to be where the
    Legislature intended to codify it.
    18
    DISPOSITION
    The gang and firearm enhancements in all counts are
    stricken. In addition, the finding in count 2 that the offense of
    shooting at an occupied vehicle was committed for the benefit
    of a criminal street gang is reversed. In all other respects, the
    judgment is affirmed. On remand, the prosecution shall have the
    option to retry the defendant on the gang allegations. The trial
    court shall resentence the defendant and correct the clerical errors
    described in Discussion part B.3.
    CERTIFIED FOR PUBLICATION.
    ROTHSCHILD, P. J.
    We concur:
    CHANEY, J.
    BENDIX, J.
    19