Daily Archives: August 8, 2026

Gary Musings on Pedro T. and Estrada (no case 000317)

Gary Musings,  on Pedro T., because there is no summary for Case 000317

I (Gary) decided not to include a summary on this what I have coded as Case 000317, because it contained very few new nuggets of legal principles, was very fact specific, and the facts were very convoluted. But of SOME possible interest, you may wish to review In re Pedro T. (1994) 8 Cal.4th 1041, which was mentioned in the case I’m not posting.

In essence, the question in Pedro T. was what happens when a defendant commits a new offense (in Pedro’s case, vehicle theft under section 10851) during a time when the penalty had been temporarily increased by the Legislature, with a sunset provision that would revert the available punishment to its previous status in the event the Legislature chose not to extend or remove the sunset provision.

In Pedro’s case, Vehicle Code section 10851 had been amended (before he committed his crime) to increase the range of punishment from a 16-month, 2-year, 3-year triad to a 2-year, 3-year, 4-year triad. He committed his crime under the new triad. During the course of the juvenile court’s efforts to rehabilitate the minor, he reached the limits of the court’s patience and was committed to the California Youth Authority for a term that was based on the increased tier.

While Pedro was serving his time, the sun set and the penalty range reverted to the former lower triad. Because his judgment was not final (he was still under the jurisdiction of the juvenile court, which could modify his disposition at any time), he sought to have his term lowered in keeping with the newly restored lower range, relying on In re Estrada (1965) 63 Cal.2d 740.

You may recall that Estrada firmly established the presumption that, in the absence of clear indication that the Legislature intended otherwise, ameliorative legislation is retroactive to any person whose judgment was not final when it took effect.

Pedro T. points out a very important aspect of Estrada: “The basis of our decision in Estrada was our quest for legislative intent.”

In other words, Estrada does NOT establish a rule that ameliorative provisions apply retroactively to defendants whose judgments are final. Instead, it holds that the courts will assume that the Legislature meant amelioration to apply to any that it could, UNLESS there is something that indicates that the Legislature did NOT intend it to apply retroactively.

So why didn’t the Supreme Court agree with Pedro that he should get the benefit of the reduced tier? “Ordinarily when an amendment lessens the punishment for a crime, one may reasonably infer the Legislature has determined imposition of a lesser punishment on offenders thereafter will sufficiently serve the public interest. In the case of a “sunset” provision attached to a temporary enhancement of penalty, the same inference cannot so readily be drawn.” (Pedro T., at p. 1045.)

The court noted the practical effect of a contrary rule. The purpose of increasing the triad was to make the consequences more severe so the average car thief would be discouraged from stealing cars. (I have thoughts running through my mind trying to pinpoint clients I had who refrained from misconduct because they carefully considered the penalty that potentially could be inflicted were they to be caught. I’m even trying to think whether I ever had a client who thought he (or she) might be caught. Nope, can’t think of any. But surly there must be SOME people who were willing to steal cars when the range was 16-2-3 but decided it wasn’t worth it when the penalty rose to 2-3-4. I suppose I simply never met the ones who didn’t do the crime because they didn’t want to do THAT much more time.)

But I digressed. Sorry ’bout that. The practical effect stated by Pedro T. is that a three-year legislative experiment in enhanced penalties might be seriously undermined if those penalties, instead of applying to all offenders during the three years, could be imposed only on those whose convictions became final before the sunset date. A rule that retroactively lessened the sentence imposed on an offender pursuant to a sunset clause would provide a motive for delay and manipulation in criminal proceedings. When the Legislature signals, years in advance, its intention to reduce the punishment for an offense, defendant and counsel have a strong incentive to delay the finality of a judgment in the hope of eventually receiving the lessened, postsunset term.

All in all, then, the Pedro T. majority (four of the seven justices; there was a dissenting opinion by Justice Arabian, in which Justices Kennard and Mosk concurred) concluded that it was the intent of the Legislature that all persons convicted of committing the crime during the three years of the increased triad were to be punished with that triad in mind, and the reversion to the lower triad was not to be considered retroactive to those whose judgments were not final when the sun set and the penalty lowered to its former self.

Many years ago (2013 and 2014), I wrote a few articles in the Forum (the publication produced by the California Attorneys For Criminal Justice) tracing the development of Estrada. Four cases were decided at that time, with variations on whether the factual scenario supported retroactivity.

In re Daup (1965) 63 Cal.2d 754 had the same result as Estrada. Daup escaped from prison at a time when the penalty for escape without force or violence was a term in prison of not less than one year (meaning the maximum was life). Prior to his trial, the statute was amended and the penalty for that crime was six months to five years in prison. Mr. Daup got the benefit of the reduction.

In re Griffin (1965) 63 Cal.2d 757, reiterated the holding in Estrada, but found that the statute in question was not ameliorative as to the defendant. The defendant had been sentenced to prison for 10 years to life on the current drug offense (Health & Saf. Code, sec. 11351) because he had a prior conviction of a type that triggered that sentence. Before judgment was final, however, the Legislature lowered the term to five years to life, but increased the minimum time that must be served before the inmate could be paroled. Thus, it ameliorated the punishment in some respects, and increased it in others. Since he had already been paroled, application of retroactivity would actually have sent him back to prison because he had been paroled earlier than under the new law. The Court concluded that the overall effect of the change in the law was harsher, and declined to apply it to the defendant. I’d like to say I’ve often wondered whether the result would have been different had he not yet been paroled. But I can’t honestly say I’ve often wondered about it. Maybe just once or twice?

In re Kirk (1965) 63 Cal.2d 761 again upheld the presumption in Estrada, and reached the same result as Estrada. He committed his theft when the felony trigger was $50 (less than would be petty theft, a misdemeanor), and he’d stolen $75. Before his judgment became final, though, the threshold rose to $100. The Supreme Court deemed the change applicable to him, reducing his offense from felony to misdemeanor status.

Note that all four cases arose by way of habeas corpus petitions. Back in the day, the judges did not set felony sentences when probation was not granted. If not granted probation, the person was sentence to imprisonment in the state prison for the term prescribed by law. Assault with a deadly weapon carried a penalty of six months to life. Assault with intent to kill (under section 217, which was repealed decades ago) carried 1 year to 14 years. In Daup’s case, the penalty changed from “a term in prison of not less than one year,” which meant potentially a life term. Then it was changed to six months to five years.

The Adult Authority was the body that decided when a prisoner could be released on parole. When the Determinate Sentence Law (DSL) was enacted in 1976-1977, the terms specified as the tiers were based on the terms that normally had been fixed by the Adult Authority for release on parole. Or at least, the practices were examined and were influential in decisions on the triads.

Did you know that for a short time, until around 1978, second degree murder was assigned a range of 5-6-7 years under the Determinate Sentence Law? If you have a cold case pop up, it’s very important to look at the exact statutes in effect at the time of the offense. Until the early 1980s, life terms could not be ordered to be served consecutively. Who knew, eh? For a few years back in the day, if a defendant on a wobbler was committed to the California Youth Authority, it immediately rendered the offense a misdemeanor. There was no requirement of successful completion. Also, there were limitations on the combined length of determinate terms where consecutive sentences were imposed. Every hear of “double the base term”? Or five-year limitations on prior prison term enhancements?

I have no official source for the following claim, and I have no idea whether it is even remotely true, but I heard that prosecutors and judges approached the Legislature in at least the 1980s and 1990s to do away with as many of the limitations as possible because the DSL was too complicated. Seriously? Anyone read the tax codes and successfully get them simplified? Again, I do NOT know whether that claim has any truth. It may be simply a result of myths and legends generated by and kept alive by defense attorneys lamenting the loss.

And in my admittedly biased opinion, the DSL was nowhere nearly as complex as some of the “hard on crime and criminals” statutes that were enacted in the decades since.

It has been refreshing (again, I’m biased) to see the reasonable move by the Legislature in recent years to restore justice over vengeance (yes, “meow”) to the extent it (and the initiative process as well, I guess) has.

Case: 000316

Error and/or relief

We affirm the order denying resentencing under section 1172.6, but direct the trial court to prepare a corrected abstract of judgment, because the credit for time served was miscalculated.

First Holding:

Both the date of arrest and the sentencing should be included in credit calculations

Authority:

People v. Bravo (1990) 219 Cal.App.3d 729, 735

Second Holding:

The failure to properly calculate custody and conduct credits is a jurisdictional error that may be corrected at any time.

Authority:

People v. Chilleli (2014) 225 Cal.App.4th 581, 591

Case: 000315

Error and/or relief

The defendant appeals the denial of his motion to strike a strike that was based on gang activity under the definition existing prior to the changes to section 186.22 enacted by AB 333. The motion should have been granted, and we vacate the defendant’s admission of that strike. It is undisputed that the trial court did not evaluate whether the conduct underlying the defendant’s prior convictions would violate section 186.22 as amended by AB 333, and nothing in the record would have afforded it a basis to do so. We will reverse the judgment and remand the matter for the trial court to apply the elements of section 186.22 as amended. On remand, the People must decide whether to prosecute the prior strike allegations under the law as amended by AB 333 (2021–2022 Reg. Sess.). The trial court must resentence the defendant.

Holding:

When determining whether a prior serious felony conviction qualifies as a strike based on gang criminal activity, sentencing courts must consider whether the conduct underlying a prior conviction that by operation of section 186.22 is alleged to be a serious or violent felony still satisfies section 186.22 as amended.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 608

Case: 000314

Error and/or relief

The trial court improperly imposed the upper term for the attempted murder conviction based on unpleaded and unproven aggravating factors. Accordingly, we will remand for resentencing and otherwise affirm the judgment.

First Holding:

In selecting a term of imprisonment, a trial court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Notwithstanding this rule, a court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170

Second Holding:

With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt. A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established. Further the United States Supreme Court rejected the argument that the prior conviction exception to the Sixth Amendment permits a judge to find perhaps any fact related to a defendant’s past offenses. Rather, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 747, 768

Cunningham v. California (2007) 549 U.S. 270, 281

Erlinger v. United States (2024) 602 U.S. 821, 837-838

Third Holding:

A trial court’s reliance on aggravating circumstances not found in accordance with section 1170(b) is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. When assessing prejudice under Chapman, the proper inquiry is whether any rational fact finder could have come to the opposite conclusion. If a rational juror could have reached the opposite conclusion, the error is not harmless under Chapman. The Attorney General bears the burden of establishing that the federal constitutional error was harmless beyond a reasonable doubt.

Authority:

Chapman v. California (1967) 386 U.S. 18

People v. Lynch (2024) 16 Cal.5th 730, 768

People v. Wiley (2025) 17 Cal.5th 1069, 1090

People v. Avalos (2022) 85 Cal.App.5th 926, 953

Fourth Holding:

The error was not harmless beyond a reasonable doubt. The record does not necessarily reflect that defendant’s convictions were increasing in seriousness. He was subject to a sustained juvenile petition for robbery, and his adult conviction was for unlawful firearm activity. A rational jury could have concluded that his felony conduct was not increasing in seriousness. The trial court’s remaining findings are subjective determinations that go beyond the mere fact of a prior conviction.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 767 [The Sixth Amendment jury trial right attaches to every aggravating fact, other than a prior conviction, used to justify imposition of the upper term]

Case 000313

Error and/or relief

Tried as an adult for murder in 2008, the defendant was sentenced to 47 years to life in prison. The trial court denied his recently filed (2024) motion for resentencing under section 1170(d), believing the defendant was categorically ineligible for resentencing because he did not receive an actual LWOP sentence and the 47 years to life sentence he did receive was not long enough to qualify as the functional equivalent of LWOP. We hold, having given defendant’s circumstances individualized consideration, that defendant is eligible for resentencing because he is serving a sentence that constitutes the functional equivalent of LWOP.

First Holding:

When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.

Authority:

PEN 1170(d)

Second Holding:

We conclude that defendants who are serving the functional equivalent of LWOP, not just those serving an actual LWOP sentence, are eligible for section 1170(d) relief.

Authority:

People v. Heard (2022) 83 Cal.App.5th 608 [GARY NOTE: 23 years plus 80 years to life]

People v. Sorto (2024) 104 Cal.App.5th 435 [GARY NOTE: 10 years plus 130 years to life]

People v. Contreras (2018) 4 Cal.5th 349, 356, 369 [holding sentences of 50 and 58 years to life imposed on two defendants who were 16 years old at the time of their kidnapping and sex offenses were functionally equivalent to LWOP and violated the Eighth Amendment]

Third Holding:

While the trial court rightly identified the line drawing problems this question raises given the current state of the law, lines must still be drawn. They need not be drawn entirely in the abstract, however. Instead, guided by our consideration of defendant’s history and prospects—and by our Supreme Court’s observation that a sentence must give a juvenile “a realistic hope of release and a genuine opportunity to reintegrate into society” to be constitutional (Contreras, supra, 4 Cal.5th at 373)—we hold defendant is serving a sentence that is the functional equivalent of LWOP and among those who are not categorically ineligible for relief under section 1170(d).

Authority:

People v. Contreras (2018) 4 Cal.5th 349, 373

Fourth Holding:

This question is pending in the Supreme Court. Acknowledging our Supreme Court will have the final word, we hold, having given defendant’s circumstances individualized consideration, that defendant is eligible for resentencing because he is serving a sentence that constitutes the functional equivalent of LWOP.

Authority:

People v. Munoz (2025) 110 Cal.App.5th 499, review granted June 25, 2025, S290828