Category Archives: Retroactivity

Amelioration, Fines and fees, Juveniles, Retroactivity

Case: 000243

Posted on by Gary McCurdy

Error and/or relief

Because of legislation enacted since the disposition hearing, the $100 restitution fine is ordered stricken in this Welfare and Institutions Code section 602 juvenile proceeding.

Holding:

While this appeal was pending, the Legislature amended section 730.6 and removed the requirement that a minor pay a restitution fine. The relevant portion of the statute now states that the court shall not impose a separate and additional restitution fine against a minor found to be a person described in Welfare and Institutions Code section 602. Because the judgment is not final, the appellant is entitled to the ameliorative benefits of this amendment.

Authority:

WIC 730.6

In re Estrada (1965) 63 Cal.2d 740

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000214

Posted on by Gary McCurdy

Error and/or relief

After the defendant was convicted, but before the judgment became final, AB 333 was enacted, and its application in defendant’s case. We vacate the gang enhancement allegation findings under section 186.22(b), and remand the matter to the trial court to permit the People to elect to retry the gang enhancements or, if the People do not so elect, for the trial court to proceed with resentencing petitioner in conformance with this opinion.

Holding:

AB 333 made substantial changes to the elements of criminal gang activity. These changes apply retroactively to all cases not yet final on the effective date of AB 333, January 1, 2022. A defendant is entitled to relief under AB 333 if an appellate court affirmed the judgment, but sentencing issues were pending upon remand as of its effective date.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206–1207

People v. Lopez (2025) 17 Cal.5th 388

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000207

Posted on by Gary McCurdy

Error and/or relief

We vacate the trial court’s finding that defendant’s 2014 conviction for violating former section 186.22(a) constituted a prior serious felony conviction for purposes of Three Strikes sentencing and imposition of a prior serious or violent felony conviction enhancement. Defendant’s sentence is vacated, and this matter is remanded for further proceedings to include the option to retry the allegation and for resentencing.

First Holding:

Effective January 1, 2022, the Legislature enacted AB 333 to narrow the definition of criminal street gang in order to focus on true gang-related crimes, having determined that in practice the original definition of a criminal street gang was not narrowly focused on punishing true gang-related crimes. The Legislature in AB 333 redefined the term criminal street gang so as to truly target the population of criminals for which an enhanced punishment is warranted. AB 333 made significant changes to the elements of gang offenses and enhancements as defined in section 186.22

Authority:

People v. Rojas (2023) 15 Cal.5th 561, 576

People v. Fletcher (2025) 18 Cal.5th 576, 586

People v. Tran (2022) 13 Cal.5th 1169, 1206

Second Holding:

Though the prior conviction of what purported to be a serious felony was sustained in 2014, where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Authority:

APeople v. Fletcher (2025) 18 Cal.5th 576, 583

Amelioration, Duty of the court, Fifth Amendment, Retroactivity, Sentencing, Standard of review

Case: 000206

Posted on by Gary McCurdy

Error and/or relief

The true findings on the gang enhancements and gang-related firearm enhancements are vacated. The sentence is vacated, and the case is remanded. On remand, the People may retry the enhancement allegations under the law as amended by AB 333. If the People do not retry the enhancements, or at the conclusion of a retrial, the trial court shall conduct a full resentencing.

First Holding:

Several years after the defendant was sentenced, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) recommended recall and resentencing pursuant to Penal Code section 1172.1(a)(1), based on the defendant’s exceptional conduct while incarcerated. The trial court recalled the sentence and resentenced him to 40 years to life, despite the recommendation by both parties that the sentence be reduced to a determinate term less than half that 40-year minimum. The trial court erred in not examining the impact of AB 333, which amended the gang activity statutes significantly. When the defendant’s sentence was recalled, the trial court regained the jurisdiction and duty to consider what punishment was appropriate for him, and the defendant regained the right to appeal whatever new sentence was imposed. His judgment thus became nonfinal, and it remains nonfinal in its present posture. The defendant is entitled to the benefits of AB 333’s ameliorative changes to section 186.22.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 161–162

People v. Corpening (2016) 2 Cal.5th 307, 312 [the application of law to undisputed facts is a question of law subject to de novo review]

Second Holding:

The evidence adduced at the defendant’s trial was insufficient to establish that the predicate offenses benefitted the gang beyond enhancing its reputation. Accordingly, we must vacate the true findings on the gang enhancements under section 186.22(b)(1), as well as the true findings on the gang-related firearm enhancements under section 12022.53(b), (c), (d), and (e)(1).

Authority:

People v. Lee (2022) 81 Cal.App.5th 232, 239–240

People v. Perez (2022) 78 Cal.App.5th 192, 206, fn. 11

Third Holding:

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. 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.

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 669-670

Fourth Holding:

Whether the People decide not to retry the enhancements, or at the conclusion of such a retrial, the defendant is entitled to a full resentencing.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

People v. Valenzuela (2019) 7 Cal.5th 415, 424–425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

Amelioration, Retroactivity, Sentencing

Case: 000182

Posted on by Gary McCurdy

Error and/or relief

In light of AB 333, the trial court’s true findings on the prior serious felony enhancement and the strike prior allegations must be reversed. It is undisputed that there was insufficient evidence that defendant’s prior gang-related conviction (sec. 186.22(a)) satisfied the more stringent evidentiary requirements imposed by the change in law. Therefore, the court erred in considering that conviction to double defendant’s sentence. Accordingly, we will vacate the sentence and remand the matter for further proceedings. The defendant’s sentence is vacated and the matter is remanded for further proceedings, including a full resentencing. On remand, the People may elect to retry, under current law, the allegation that defendant’s prior gang-related conviction qualifies as a serious felony and strike prior for purposes of the three strikes law and a prior serious felony enhancement.

First Holding:

Assembly Bill No. 333 (2021-2022 Reg. Sess.) narrowed liability for gang-related offenses by requiring more stringent evidentiary requirements for proving them.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206

People v. Rojas (2023) 15 Cal.5th 561, 576

Second Holding:

AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. It applies to the analogous determination under section 667(a) for prior serious felony enhancements. Thus, AB 333’s amendments to section 186.22 apply to the current determination of whether the prosecution has proven the prior serious felony enhancement allegations in this case. In other words, whether a prior conviction was for an offense that constitutes a felony violation of Section 186.22 is determined by applying the current version of section 186.22.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583, 605, 607

Third Holding:

Where, as here, AB 333 applies retroactively to the determination of whether a prior gang-related conviction qualifies as a serious felony for purposes of the three strikes law and a prior serious felony enhancement we review for harmless error pursuant to Chapman. Vacating a true finding is required unless it appears beyond a reasonable doubt that the finding would have been the same under current law. If there is any reasonable possibility that the error might have contributed to the finding, vacatur is required.

Authority:

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

People v. Tran (2022) 13 Cal.5th 1169, 1207

People v. Lewis (2006) 139 Cal.App.4th 874, 887

Fourth Holding:

At the time the defendant entered his guilty plea, the People were not required to prove, and defendant did not admit, the current evidentiary requirements of that provision, as amended by AB 333. Under these circumstances, the appropriate remedy is to vacate the true findings on the allegations that defendant’s prior gang-related conviction qualifies as a prior serious felony for purposes of the three strikes law and the prior serious felony enhancement and remand the matter to the trial court to allow the People the opportunity to retry those allegations under current law, considering the elements of section 186.22 as amended by AB 333.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 607-608

Fines and fees, Retroactivity

Case: 000180

Posted on by Gary McCurdy

Error and/or relief

The restitution fine imposed more than 10 years ago must be stricken from the judgment.

First Holding:

Effective January 1, 2025, the Legislature amended section 1465.9 to add subdivision (d), which provides that, upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9

Second Holding:

The statute is retroactive, because On January 1, 2025, when the amendment became effective, his restitution fine was rendered uncollectible and unenforceable. There is no authority for the People’s assertion that a hearing on a petition for resentencing under section 1172.75 starts a new period of 10 years.

Authority:

In re Mattison (2025) 115 Cal.App.5th 1062, 1069 [applying the amendment to a restitution fine imposed in 2008]

Fines and fees, Juveniles, Retroactivity

Case: 000137

Posted on by Gary McCurdy

Error and/or relief

The minor contends, and the People concede, that recent amendments to Welfare and Institutions Code section 730.6 apply retroactively, requiring that the restitution fine imposed by the juvenile court be stricken.

First Holding:

While this appeal was pending, the Legislature amended section 730.6 and removed the requirement that a minor pay a restitution fine. The relevant portion of the statute now provides that the court shall not impose a separate and additional restitution fine against a minor found to be a person described in Section 602.

Authority:

WIC 730.6

Second Holding:

Appellant is entitled to the ameliorative benefits of this amendment.

Authority:

In re Estrada (1965) 63 Cal.2d 740, 745-746 [ameliorative legislation changes applicable to cases pending on appeal]

Retroactivity, Sentencing

Case: 000134

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in imposing the upper term on factors that had not been proved to a jury beyond a reasonable doubt.

First Holding:

A criminal judgment does not become final for purposes of Estrada when an appellate court affirms a conviction, but leaves sentencing issues pending before the trial court following remand. During the resentencing on remand, the benefits of supervening ameliorative legislation apply retroactively.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 392

In re Estrada (1965) 63 Cal.2d 740

Second Holding:

Absent waiver or stipulation, aggravating factors such as the increasing seriousness of a defendant’s prior convictions and unsatisfactory performance on probation must be found true beyond a reasonable doubt by a jury before those facts can be used to justify an upper term sentence.

Authority:

PEN 1170

People v. Wiley (2025) 17 Cal.5th 1069, 1082

Third Holding:

This case must be distinguished from Brannon-Thompson, which found that the plain language of section 1172.75(d)(4) indicated the Legislature intended the new burden of proof amendments to section 1170(b) to apply only if the trial court is imposing the upper term for the first time at a section 1172.75 resentencing. In this case, the defendant was not being resentenced after a prior sentence that imposed an upper term was recalled.

Instead, he was on remand from the prior appeal directive to strike prior prison term enhancements before section 1172.75 even went into effect (which the court did). As such, when the trial court proceeded to resentence defendant in 2023, his sentence already lacked any enhancements imposed pursuant to former section 667.5(b). Defendant accordingly was not eligible for resentencing under section 1172.75 in 2023, making the provision inapplicable. Instead, appearing for resentencing based on a remand in the prior appeal, the defendant was entitled to the benefits of supervening ameliorative legislation, including the new evidentiary standards of section 1170(b).

Authority:

PEN 1170(b)

People v. Lopez (2025) 17 Cal.5th 388

People v. Wiley (2025) 17 Cal.5th 1069, 1087

People v. Brannon-Thompson (2024) 104 Cal.App.5th 455

Amelioration, Appellate Principles, Discretion, Plea bargains, Retroactivity, Sentencing, Standard of review

Case: 000130

Posted on by Gary McCurdy

Error and/or relief

Following remand from the defendant’s prior appeal, the trial court declined to strike a firearm enhancement. The court did not realize the impact of recent changes in the law on gang criminal activity, asserting that its jurisdiction was limited to the scope defined in the remittitur (which remanded for reconsideration of the request to dismiss the firearm enhancement). We reverse the judgment and remand the matter for the trial court to rule on defendant’s motion to dismiss the gang enhancements, and to reconsider its determination declining to dismiss the firearm enhancements under section 1385 under the standard more recently articulated by the Supreme Court.

First Holding:

The scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws. We review associated questions of statutory construction de novo. Whether a statute applies retroactively is a question of statutory construction we review de novo. We review for abuse of discretion the trial court’s exercise of discretion under section 1385(c).

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 396

People v. Burke (2023) 89 Cal.App.5th 237, 242

People v. Brown (2012) 54 Cal.4th 314, 319

People v. Walker (2024) 16 Cal.5th 1024, 1033

Second Holding:

Section 1385(c)(1) provides that, notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the nine mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

Authority:

PEN 1385(c)

Third Holding:

Absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances, when they are present. In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

People v. Walker (2024) 16 Cal.5th 1024

Fourth Holding:

The Legislature amended PC 186.22(g) to redefine the phrase “benefit, promote, further, or assist” a criminal street gang for the purposes of section 186.22. The phrase now means “to provide a common benefit to members of a gang where the common benefit is more than reputational.” Those elemental changes apply retroactively to all nonfinal cases such as this one.

Authority:

PEN 186.22(e)(1)

PEN 186.22(g)

People v. Tran (2022) 13 Cal.5th 1169, 1207

In re Estrada (1965) 63 Cal.2d 740, 745

Fifth Holding:

Where a statute is silent regarding retroactivity, we employ the ordinary presumptions and rules of statutory construction to discern the Legislature’s intent. Ordinarily, statutes are presumed to apply only prospectively, unless the Legislature expressly declares otherwise. Estrada, however, held that an amendment to a statute that lessened punishment for a crime gave rise to an inference of contrary legislative intent; that is, that the Legislature must have intended that the amendment mitigating punishment would apply retroactively to every case to which it constitutionally could apply. The Estrada rule rests on an inference that the Legislature intends an amendment reducing punishment under a criminal statute to apply as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.

Authority:

Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 230

People v. Burgos (2024) 16 Cal.5th 1, 7

In re Estrada (1965) 63 Cal.2d 740

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308

Sixth Holding:

If the trial court exercises its discretion to dismiss the gang enhancements, the prosecution will be entitled to the same remedy as the defense (i.e., withdrawal from the plea agreement) and the trial court may withdraw its approval of the plea agreement as well. In that event, the trial court must restore the parties to the status quo ante, including permitting the prosecution to request to reopen the preliminary hearing and present evidence on the new elements of the gang allegations or to proceed without those charges.

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 707-708

People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256

Mendoza v. Superior Court (2023) 91 Cal.App.5th 42

Seventh Holding:

Penal Code section 1016.7 provides that, in the interest of justice and to reach a just resolution during plea negotiations, the prosecutor shall consider whether the defendant has experienced psychological, physical, or childhood trauma, whether the defendant is or was a youth at the time of the commission of the offense, and whether any of those considerations contributed to the commission of an alleged offense. The statute defines youth as any person under 26 years of age on the date of the offense. But it is not retroactive. It does not reduce punishment for a criminal offense, create discretion to reduce punishment, narrow the scope of criminal liability, or create a concrete avenue for certain individuals charged with a criminal offense to be treated more leniently or avoid punishment altogether.

Authority:

People v. Burgos (2024) 16 Cal.5th 1, 13

Amelioration, Appellate Principles, Duty of the court, Retroactivity, Sentencing

Case: 000126

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously used the defendant’s 2012 prior conviction to sentence him under the Three Strikes law without first determining whether that gang-enhanced felony could have been obtained after amendments enacted by AB 333 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699).

First Holding:

Where a defendant has previously suffered a conviction under the prior version of Penal Code section 186.22, the changes made in AB 333 apply to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Authority:

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

Second Holding:

By treating the defendant’s 2012 conviction as a prior strike conviction, the trial court imposed a sentence that is unauthorized by law under Fletcher. The defendant’s argument is therefore not forfeited.

Authority:

People v. Mancebo (2002) 27 Cal.4th 735, 749, fn. 7 [forfeiture principles do not apply to legal error resulting in an unauthorized sentence]

People v. Lynch (2024) 16 Cal.5th 730, 751 [The unauthorized sentence rule is an exception to the forfeiture doctrine. It permits a challenge to an unauthorized sentence on appeal even if the defendant failed to object below.]

Fines and fees, Retroactivity, Sentencing

Case: 000117

Posted on by Gary McCurdy

Error and/or relief

The trial court’s judgment is modified to vacate any portions of the probation related fees imposed by the trial court as part of probation condition No. 14 that remained unpaid as of July 1, 2021.

First Holding:

AB 1869 (2019-2020 Reg. Sess.) repealed the authority to collect various fees. The bill makes the unpaid balance of these fees unenforceable, uncollectible, and requires that any portion of a judgment imposing such fees be vacated.

Authority:

PEN 1465.9

Second Holding:

The defendant is entitled to the retroactive application of these ameliorative changes.

Authority:

People v. Esquivel (2021) 11 Cal.5th 671, 680

People v. Clark (2021) 67 Cal.App.5th 248, 258